Laudenberger v. Easton Transit Co.

• Decision Date: 06 May 1918
• Docket Number: 42
• Citation: 261 Pa. 288,104 A. 588
• Parties: Laudenberger, Appellant, v. Easton Transit Company
• Court: Pennsylvania Supreme Court

104 A. 588

261 Pa. 288

Laudenberger, Appellant, v. Easton Transit Company

No. 42

Supreme Court of Pennsylvania

May 6, 1918

Argued March 12, 1918

Appeal, No. 42, Jan. T., 1918, by plaintiff, from judgment of C.P. Northampton Co., Nov. T., 1916, No. 86, for defendant n.o.v., in case of Isabella M. Laudenberger v. Easton Transit Company. Affirmed.

Trespass to recover damages for death of plaintiff's husband.

The facts appear in the following excerpt from the opinion of STEWART, J., sur defendant's motion for judgment n.o.v.:

This is a motion by defendant for judgment n.o.v. It appeared from the evidence in this case that the husband of the plaintiff was riding in an automobile with Martin Neeb and his son Elvin Neeb. Martin Neeb owned the automobile, and was driving it, seated on the left-hand side and was driving it, seated on the left-hand side of the automobile. Mr. Laudenberger was on the right of the driver, and in the back seat was Elvin Neeb. They were proceeding northwardly on the road known as the Wilson Crossing Road. This road ran into and stopped at the Easton and Bethlehem State Road. On the south side of the State road is the track of the Easton Transit Company which was built very close to the property line. Along the State road towards the east at a very close distance on September 11, 1916, was a peach orchard which was in full leaf. This orchard also extended south-wardly along the Wilson Crossing Road, back nearly to the railroad track, which crossed the road, 890.5 feet south from the transit company's track. It was impossible for anyone going along the Wilson Crossing Road towards the transit company's track to obtain a view of a car approaching from the east until he reached a point ten, twelve or fifteen feet from the track.

The undisputed evidence is that from a point on the transit company's track, where the center of the Wilson Crossing Road intersects it, a person standing beside the south rail could see a car approaching from the east at a distance of 1,010 feet. At a distance of 322 feet from the transit company's tracks, on the Wilson road, there is a railroad warning sign, and on a telephone pole about three and a half feet from the south rail of the transit company's track where the road runs into the State highway, there is a large transit company sign with large letters on it and the words "stop, look, listen." That is Exhibit No. 8 in the case. Two hundred feet west of the transit company's crossing is what is known as the Ellicott House. There is a downward grade from east to west in the transit company's track for at least 760 feet, east from the crossing, varying in degree, but the highest grade is 3.33%. There is also a slight upward grade on the Wilson Crossing Road, extending from a point about ten or fifteen feet to the transit company's track. At about four-thirty p.m. on a perfectly clear day, Mr. Neeb drove his automobile along the Wilson Crossing Road at a speed of twenty miles an hour, until he came within a point about 150 feet from the transit company's track, when he slackened down to about eight to ten miles an hour, when he threw on his power to go up the slight incline, and to cross the tracks. He testified that he heard no whistle, and he also testified that he looked ahead for the crossing. He did not stop at any time, and while the auto was on the track, it was struck by a trolley car which was proceeding from the east at a speed, according to the motorman's testimony, of from eighteen to twenty miles an hour. One of the witnesses, however, states that they were going, to the best of his judgment, thirty to thirty-five miles an hour. Mr. Laudenberger was instantly killed. Both the motorman and Mr. Neeb testified that they saw each other within a very short space, the car being not over twenty feet from the point of collision, and the automobile from twelve to fifteen feet. We are here endeavoring to accurately present the situation, but the exact distances will appear in the testimony, which we shall quote hereafter. The learned counsel for the defendant insists that there is no evidence that the defendant company was negligent; that a preponderance of the evidence shows that the motorman blew his whistle at a proper place; that both he and the conductor so testified; that it was plainly heard by the boy, Brunell, who was right at the crossing, and by Miss Hammann, who was in an automobile; and that plain...